Category: Photography

Incoherent Copyright Ruling Should Anger Photographers

My colleague Stephen Carlisle at Nova Southeastern University already made short work of the aberration of copyright law and fair use analysis that occurred recently in the District Court for the Eastern District of Virginia. But I wanted to expand on a few elements that caught my attention. In the case Brammer v. Violent Hues Productions, LLC, the court’s deference to the defendant’s appeals to good faith and fair use resulted in an opinion that so dramatically flies in the face of legal doctrine that (as Carlisle notes) it would obliterate copyright in photography altogether.

At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.

Brammer sent a Cease & Desist letter in 2017, and Violent Hues immediately removed the image; but Brammer then sued for copyright infringement, and Violent Hues moved for summary judgment, arguing that it had made a fair use of the photograph. Before we get to that defense, though, we have to note this statement of facts from the opinion:

“Violent Hues’ owner, Fernando Mico, found the photo online. He alleges that he saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph.”

So, even prior to the court’s fair use analysis, it allows two substantial errors to be dispositive in this case. The first is overlooking the fact that an “indication” of copyright is not required. All works are automatically protected, if they were produced after January 1, 1978; and it’s hard to fathom how any judge would not know this. Hence, Mico’s assumption that a work is “publicly available” because it was found online is plainly invalid as a matter of black-letter law.

Second, even where a court might consider leniency for an unintended infringement made in good faith, then it seems this court did not consider it relevant that Fernando Mico is a professional filmmaker. Violent Hues is a production company offering “Script to Screen” services, and Mico even signed a distribution contract for his indie feature film in 2014. This is not some teenager who might be confused about the use of images in the digital age. This is a professional image-maker and copyright owner, who cannot reasonably claim to be so naive about images he “finds online.”

Transformativeness is Still a Doctrine Without Definition

The truly staggering aspects of this opinion are found in the court’s rationale for finding fair use. The fact that the interpretation of “transformativeness” here negates more than a century of copyright law related to photography should serve as compelling evidence that the doctrine remains incoherent and meddlesome at best. The opinion states:

“Here, Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” [Emphasis added]

This confluence of vagueness undermines copyright in photography at its core. By the logic of this opinion, if the makers of a pregnancy test want to make unlicensed use of Annie Leibovitz’s famous portrait of pregnant Demi Moore in a print ad, they’re free to do so because their “purpose” is different from Leibovitz’s original “purpose.”* And we could keep conjuring such examples ad infinitum. Based on this holding, any photograph may be used by any party as long as it can be argued that observers will interpret a meaning that is distinct from the photographer’s original intent.

That reasoning does not even square with the history of creative expression itself—let alone copyright law. It is widely understood in the world of art that the creator’s intent may vary considerably from the viewer’s interpretation, and neither understanding is necessarily “incorrect.” What are we to make, then, of photographs that are simultaneously expressive and informative—images that may be considered both journalism and fine art by one set of viewers, but perhaps scorned for various reasons by a different set of viewers? Unless a court is required to compare and contrast two expressive works (i.e. in a real fair use case), it has no basis for wandering into this semantic and subjective minefield.

Ordinarily, the courts are not expected to concern themselves with the metaphysics of art when straightforward, unlicensed copying of a work occurs, as it did in this case. The court contends that by placing an “expressive” work on an “informational” website, the use was “transformative,” thus tilting toward fair use. As Carlisle notes, however, the broadly-informational nature of the site itself has nothing to do with the fact that Mico selected Brammer’s photograph because it’s a “cool” image. In other words, it was chosen because of its expressive qualities, regardless of the context in which it was used.

This reasoning is supported by the fact that, as a professional image-maker, Mico can be presumed to have judged the difference between Brammer’s expressive work and a more pedestrian, informative, photo of the same neighborhood. In fact, the more expressive a work is, the less we can generally consider it to be informative, and a time-lapse photo of Adams Morgan is hardly a literal representation of the experience the visitor is likely to have (at least while sober). Then, because the photograph was chosen to promote tourism as a feature of attending the film festival, the court erred in finding the use to be non-commercial under the first factor.

Still, even if Brammer’s photo were less “cool,” (i.e. more informative), it should not matter; and the court has no legal grounds for even weighing the amount of expressiveness in this particular case. Exploitation of a copyrighted photograph — even a “pedestrian” image — without a license is an infringement. End of discussion.

Regardless of anyone’s opinion of the original work, the grounds for fair use analysis under the “transformativeness” test are a) if the user alters the original work in a way that creates a truly new expression; or b) if use of the work is essential to the functioning of a new technology or service that is itself transformative to society—and this includes the case (Vanderhye v. iParadigms) cited by the Court to support its application of “transformativeness.”

In Brammer, Violent Hues makes no claim of fair use to create a new expression, and there is nothing transformative—based on either case law or common sense—about using a photograph to boost tourist attractions while promoting an event. Since Violent Hues’s use meets neither standard, “transformativeness” should not have received much consideration, let alone a finding in the defendant’s favor.

Undermining Copyright in Photography

The real hazard in this ruling—the one that should make photographers apoplectic—is that the court contends that Brammer’s photograph is expressive but that Violent Hues made a fair use because Mico somehow used only the informative aspects of the image based on the factual nature of the subject matter. The opinion states…

“The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ [sic] used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”

This metaphysical parsing of the expression from the information in Brammer’s photograph inverts 124 years of legal doctrine. Since the mid-19th century, it is well- established law that ideas and facts are not protectable while creative expressions are protectable; and this principle collided with photography near the end of the century because it was plainly understood that a camera always captures whatever “facts” are placed before the lens. Thus, the copyrightability of photographs was challenged in 1882 in Burrow-Giles v. Sarony, and affirmed by the Supreme Court in 1884.

Since then, both copyright law and our understanding of photography have evolved. And in both cases, it is sufficient that a human actor create the photograph, whether he painstakingly arranges every element in front of the lens or makes snap decisions to capture ephemeral chaos on a city street. In neither case do we apportion incremental authorship of a photo relative to the “amount of factual information” it contains. The whole work—expressive and informative together—is protected and the bundle of rights are vested in its creator. Such subtle distinctions are only made when a court must consider whether a subsequent work infringes a prior work, but that is not the circumstance in Brammer.

This may be confused with the doctrine of independent creation, which allows for the fact that two photographers are likely to capture nearly identical images of a given subject (e.g. of Niagara Falls). But this only means that Photographer A may not sue Photographer B for infringement since neither can copyright Niagara Falls itself. But apropos this particular case, both photographers would have copyrights in their individual images, and neither photo may be used to promote a Niagara Falls hotel without license.

To underscore how absurd this ruling is, if it is truly the Virginia Court’s opinion that Brammer’s “expressive” photograph is separately an “informative” photograph, then Brammer should not only appeal, but he should also sue for infringement of his right to prepare derivative works. This is preposterous, of course, because a copy of a work cannot be a “derivative” work; but somehow, by virtue of internet magic and the fog of the transformativeness doctrine, the court here sees a separate image fixed in an identical copy.  Expect this ruling to be appealed and overturned.
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* I purposely cited the Moore photograph because Leibovitz lost an important fair use case when this image was parodied by Paramount studios in 1998 for the promotion of the film Naked Gun 33 1/3. The distinction is essential to illustrate how far the idea of “transformativeness” has strayed from finding fair use that supports new forms of expression.

Remembering Helen Levitt: “New York’s Visual Poet Laureate”

When I saw that this year’s World IP Day/Week celebrates the contributions of women, the first thought that came to mind was a memory of a chance meeting in the Spring of 1986 with a legendary photographer named Helen Levitt. My friend Josh and I were in New York City down from college and were supposed to stop by a gallery owned by a friend of his family. When we arrived, the owner, along with another woman who looked about seventy, was reviewing stacks of Levitt’s photographs. So, when Josh announced, “I love Helen Levitt,” he did not notice—but I did—that the older woman sitting at the end of the table, very quietly, almost to herself, said, “Thank you.”

Then, with proper introductions made, we were invited to join Ms. Levitt and the owner in poring over some of most widely-regarded images ever made in the genre of street photography. “They kept offering us more photographs like a pair of Jewish grandmothers serving chicken soup,” as Josh remembers it. At the age of eighteen, I had never heard of Helen Levitt or her work, but then neither had a lot of people due to the fact that she was an intensely shy and private person, shunning publicity for most of her more than sixty-year career capturing some of New York’s most poignant, charming, humorous, and painful little moments.

Had I thought of anything smart to ask, Levitt wouldn’t have wanted to answer it anyway, as NPR’s Melissa Block would later discover in a rare interview conducted in 2002. In response to Block asking about one photo depicting a group of girls on the sidewalk watching floating soap bubbles that seem to be following them, Levitt replied, “If it were easy to talk about, I’d be a writer. Since I’m inarticulate, I can express myself with images.”

In an era when the techno-pundits have preached to all the artists that they must abandon the concept of value in their works and instead “cultivate their personal brands” on the free platforms of abundance, this memory of a chance meeting with a woman and artist who rejected notoriety seems well suited to observing World IP Day 2018. Because without question, Levitt’s work speaks for itself, even if she was reluctant to speak for her work. As her friend, fan, and collaborator James Agee wrote in the introduction to her first book in 1965, “…the photographs as a whole body seem to me to combine in a unified view of the world, an uninsistent but irrefutable manifesto of a way a of seeing, and in a gentle and wholly unpretentious way, a major poetic work.”

Born in Bensonhurst, Brooklyn in 1913, Levitt dropped out of high school in her senior year and first learned basic photographic skills working for a commercial portrait photographer starting in 1931. By the mid-1930s, there was a growing emphasis on documentary photography, when artists like Walker Evans, Ben Shahn, and Dorothea Lange were hired by FDR’s Resettlement Administration to portray the effects of the depression and the famine of the “dust bowl.” Levitt, who would become a colleague of Evans and Shahn, was initially inspired to take pictures with a social agenda, but in that same 2002 interview, she said …

“I decided I should take pictures of working-class people and contribute to the movements. Whatever movements there were—Socialist, Communist, whatever was happening. And then, at one point, I saw the photographs of Cartier-Bresson, and I realized photography could be an art. That made me ambitious. I wanted to try to do something like that. Instead of pictures were being use for a purpose. Trying to approach making a picture that would stand up by itself.”

After Levitt met Bresson in 1935, accompanying him while he photographed the Brooklyn waterfront, she bought a used Leica the following year and taught herself composition by looking at art in museums. Then, when she began taking pictures in the city’s poorer neighborhoods, like Spanish Harlem and the Lower East Side, it was not as a documentarian but as an artist. Unlike the very specific empathy inspired by Lange’s beautifully heartbreaking “Migrant Mother,” Levitt abandoned that kind social commentary for something more subtle, or as Agee and many other critics would say, for photographs that are “lyrical.”

In the days before air conditioning and television, the streets of the neighborhoods Levitt visited were the living rooms and commons of the adults and—most of all—the playgrounds and “battlegrounds” of the the children. Here she found visual poetry.

In one of my favorite photos, a group of boys plays with a broken mirror on the sidewalk. Two of them pick through the jagged shards on the curb while another pair holds the empty, wooden mirror-frame upright so that what first grabs our attention is the small boy seated on a tricycle, positioned behind and, therefore, within the upheld frame. We instinctively see what looks like a reflection of a child who isn’t there until a moment of study corrects this perception. Particularly because of this frame-within-a-frame element, this image feels almost collage-like, composed of fragments, much like the broken bits of mirror being contemplated by the boys.

Like much of Levitt’s work, this photograph is full of kinetic energy, not so much telling a definitive story as inspiring the viewer to concoct any number of stories to describe the moments just before and just after the scene she has chosen to memorialize. Although the children in this image are demonstrably poor, neither that nor their multi-ethnicity is what Levitt presents or asks us to think about. To the contrary, the mood of the photo is more like a Rockwell idyll–just boys being boys. In this regard, it’s easy to wonder if Levitt’s profound shyness did not lend itself to a proclivity for the kind of detachment needed to make art from a keyhole view of real people. I asked my friend Marco North about Levitt’s influence on his own street photography, and he replied …

“She looked at the world really carefully, and recognized the most subtle gestures, the most fleeting laughter and elevated them to something fairly epic. I feel wisdom in her images, about life’s complexity – pain and triumph, joy and tears it is all there, with a gentle gaze, set inside a landscape (her pictures always carry context, a lot of environment with them.) I think Levitt taught me that there is a way to take the ugly, grotesque moments we witness in the street and just witness them, adding nothing overt to them, not commenting or romanticizing or demonizing – just putting a moment on a plate and serving it for lunch, no fancy parsley sprigs on it, just food for thought.”

Possibly inspired by Ben Shahn, Levitt often used a right-angle lens that allowed her to point the camera perpendicular to what she was really framing, thus preventing her subjects from altering their natural behavior for the camera. In that same NPR story, photography scholar and curator Maria Morris Hambourg describes Levitt as “like a cat, very quiet, very slight.” This jibes with the the resulting images suggesting that Levitt deftly maneuvered between the obvious icons of poverty—the broken, peeling, and threadbare neighborhoods—to capture intimate, human moments that her subjects sloughed off without the slightest awareness of their latent artistic value. As Joel Smith writes for The New York Review of Books, “Any human gesture in a street photograph—a swinging arm seen from this angle, a planted foot from that one—results from the posture and movements not of the subject alone but of two people, photographer and photographed.”

Levitt’s first solo exhibit was mounted at New York’s Museum of Modern Art in 1943. A year later she began collaborating with James Agee and artist Janice Loeb on a 14-minute film called In the Street. Essentially Levitt photographs in motion, segments from this film serve as the prologue to Episode Seven (2001) of Ric Burns’s New York documentary series. She received Guggenheim fellowships in 1959 and 1960 to resume her photography, this time in color. Although considered a pioneer in color work, many of her prints were unfortunately stolen out of the modest Greenwich Village walk-up apartment where Levitt lived alone for more than thirty years.

The first national retrospective of Levitt’s work was launched in 1991 by the San Francisco Museum of Modern Art; and in 1997, she received the International Center for Photography’s Master of Photography Infinity Award. Most of her books were published after 1987, when she was 74, suggesting Levitt might have been as reticent to market her work as she was to market herself—at least in contrast to many notable photographers. On March 29, 2009, she passed away in her sleep at the age of 95, and I wonder if there was still a box in the corner marked “Here and There,” the title of a book published in 2004.

Particularly because Helen Levitt never did “cultivate her brand,” her work, and its influence on countless subsequent photographers, says something about the meaning of “originality” in photography. The copyright skeptic often doubts the premise of “authorship,” particularly in works that are at least co-written by forces external to the author. As a mechanical (and now digital) medium of creation, photography has always been vulnerable to this criticism; and street photography might seem particularly “unoriginal” to some.

By contrast, numerous articles refer to Levitt as “New York’s visual poet laureate,” and although I cannot find the source of this accolade, it seems highly appropriate. In much the same way that Walt Whitman poeticized the precision of a blacksmith’s hammer or the dangling shawl of the prostitute in Leaves of Grass, Levitt’s street photographs are among the essential phrases in the city’s ever-expanding vernacular.

Ninth Circuit Ends “Monkey Selfie” Boondoggle

If for no reason other than the fact that I’m out of monkey jokes, I’m pleased to announce that the Ninth Circuit Court of Appeals has finally put an end to PETA’s ridiculous litigation in which the organization alleged that the Sulawesi crested macaque in the photograph known as the “monkey selfie” is rightfully the owner of the copyright in the image. After photographer David Slater had his copyright—one could argue—stripped by the blogosphere, he was then forced to defend himself in this preposterous claim by the “animal rights” organization. So, I’m glad for his sake that this bit of absurdist theater is finally over.

Both the majority and concurring opinions focus primarily on PETA’s claim that it had standing in court to act as “next friend” on behalf of the named plaintiff—the macaque whom they randomly called Naruto. “Next friends” are typically representatives of individual claimants who cannot advocate for themselves—minors, mentally or physically impaired persons, or imprisoned persons. A “next friend” must show proper relationship to the allegedly injured party and that they are truly representing the injured party’s interests rather than some other agenda while posing as a “next friend.” In the concurring opinion, Judge Smith writes …

“Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend standing on behalf of animals allows lawyers [citation omitted] and various interest groups [citation omitted] to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced. Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”

And there’s this biting comment in the footnotes of the majority opinion …

“… in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” [citation omitted] PETA seems to employ Naruto as an unwitting pawn in its ideological goals.”

It is admittedly a little disappointing that the court rejected PETA’s standing to represent the monkey in this case only because it might at least have been entertaining to read the opinion of the court on the copyright claim itself. Don’t get me wrong, I think the proposal that an animal can own a copyright is facially absurd—straining at the boundaries of even the most extreme anthropomorphism. Still, it might have been fun to watch the court inquire how, for instance, this primate resident of Indonesia managed to register “his” copyright in the United States in order to be eligible for statutory damages. And that list goes on.

As mentioned in an older post, one of PETA’s fatal flaws is the assumption that ownership of a copyright implies only commercial exploitation and, relatedly, the kind of litigation it brought on behalf of “animals everywhere.” But that’s not what copyright means. Copyright means choice. It means the author may choose the manner in which a work is exploited, and since an animal cannot express that kind of choice—at least not in any language we understand so far—even if PETA had standing, it would find its claims swirling around an ever-widening drain of absurd logic.

Copyright is complicated enough without asking the courts to read the minds of animals. I’m glad we can finally move on from this one.